Appeal rights following an administrative determination
Three new appeal rights have been introduced under the Child Support Amendment Act 2006.
Three new appeal rights have been introduced. Two are as a direct consequence of the new provisions for determinations in subpart 3 of Part 5A and in new Part 6B.
The other new appeal right provides greater fairness between applicants and respondents following an administrative review. Previously, unsuccessful applicants could have their case reconsidered by the Family Court, but dissatisfied respondents following a successful administrative review had recourse only through judicial review in the High Court. The new appeal right allows respondents also to have their case reconsidered in the Family Court.
The administrative review process that was introduced into the child support scheme in 1994 was intended to give the Commissioner of Inland Revenue the power to make determinations on the same basis as the Family Court. It was also intended that either party to a review, if unhappy with the outcome of an administrative review hearing, would have the right to apply to the Family Court for a departure order.
Despite that intention, a respondent to a successful application for an administrative determination has been unable to take an application to the Family Court for a departure order without proving his or her own "special circumstances". The fact of the administrative determination itself was not considered by the Court to be a special circumstance. The respondent, therefore, was at a greater disadvantage before the Court than an unsuccessful applicant for a determination, who could apply for a departure order and rely on the same grounds that were rejected by the Commissioner.
The provisions in section 103B are intended to produce outcomes for respondents similar to those that are possible for applicants for administrative reviews, who can subsequently pursue an application for a departure order in the Family Court.
The new rights of appeal under sections 103A and 103C will be available to both applicants and respondents. There is a two-month time limit on appeals under these new provisions, although the Family Court may allow an extension of time.
Section 49 of the Amendment Act is a transitional provision relating to certain applications to the Family Court made before 26 September 2006.
The amendments apply from 26 September 2006.